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Schwabe in the Field: Oregon's New "Ban the Box" Law Has Implications for Agriculture

June 22, 2015

Overview

With little fanfare and no exemption for agriculture, the Oregon Legislature has passed a "ban the box" law that prohibits employers from asking job applicants to disclose their criminal conviction history in the initial application. Several states, including California and Colorado, and numerous municipalities have adopted similar legislation. A similar bill is currently pending before the Washington Legislature.

Agricultural employers hire large numbers of seasonal employees, making comprehensive, individual background checks administratively and financially infeasible. Instead, ag employers have relied on a "check the box" instruction in employment applications that ask individuals to state whether they have been convicted of a crime. Checking the box "yes" does not necessarily mean the individual will not be hired. But it gives the ag employer an opportunity to inquire and determine if the nature of that individual's conviction is job related. This has been an important tool, particularly as the agriculture industry has become the target of the Equal Employment Opportunity Commission's high profile priority to end sexual harassment and assault in the fields.

With passage of the law, Oregon's agricultural industry has lost a simple, cost-effective tool used to help protect employees by minimizing the risk of hiring employees with histories of sexual assault or other similar convictions to work in the fields. However, the new law still permits employers to ask the same question in two circumstances. First, an employer can ask an individual after the initial interview for the position. Alternatively, if there is no initial interview, then an employer can ask the individual about past criminal history once he or she is conditionally offered a job. In other words, the job offer is made on the condition that the individual satisfactorily answers questions about his or her criminal background.

Solution: To comply with this new law, agricultural employers must remove the box asking if an applicant has been convicted from the application form. Once an employer determines an individual is qualified and makes a conditional offer of employment, it can then ask whether the individual has been convicted of a crime before the individual starts work. This request should be in a separate document.

The form asking whether there is a criminal history can be part of the packet of hiring papers that the employee fills out once he or she is hired. If the employee indicates he or she has been convicted of a crime that is job related, then the employer can withdraw its conditional offer of employment on those grounds. And always remember that employers who conduct criminal background checks through a third party must comply with the Fair Credit Reporting Act ("FCRA") provisions before making any adverse employment decision.